Narendra Nath Mondal vs Union Of India & Ors
2022 Latest Caselaw 8452 Cal

19.12.2022.
Item No.38
Court No.550
Saswata
                                   W.P.A. 21070 of 2022

                                   Narendra Nath Mondal
                                          Versus
                                   Union of India & Ors.

                      Mr. Indranath Mitra
                                                            ...For the petitioner
                      Mr. Subit Majumder
                                                      ...For the Union of India
                      Mr. Anil Kumar Gupta
                                                      ...For the PF Authorities
                      Mr. Arnab Roy
                                        ...For the respondent nos. 5, 8 and 9

                      The present writ application has been filed, inter

               alia, praying for a direction upon the Regional Provident

               Commissioner, Kolkata to release the monthly pension of

               the petitioner. The petitioner has joined as a Technical

               Assistant on contractual basis in West Bengal State Co-

               operative Agriculture and Rural Development Bank Ltd.,

               being the respondent no. 5 herein in the year 1986. The

               petitioner's service was confirmed in the year 1995. The

               petitioner enjoys pensionable service and is covered by the

               Employees Pension Scheme, 1995 (hereinafter referred to

               as the 'said Scheme').

                      Mr. Mitra learned advocate appearing in support of

               the aforesaid writ application submits that in the year

               2011, the respondent no. 5 had issued a notification dated

               26th   April,   2011,   thereby   offering   its employees   an

               opportunity to exercise option, in terms of paragraph 11 (3)

               proviso of the said Scheme. It is submitted that while the

               petitioner was in employment, the petitioner having come

               across the above notification, had exercised his option in

               terms of paragraph 11(3) proviso of the said Scheme and
                                  2




thereby had agreed to pay @ 8.33 per cent as contributions

on his salary exceeding Rs.6500/-. Mr. Mitra, learned

advocate, submits that both the respondent no.5 and the

Provident Fund authorities acted on the basis of the

aforesaid option and started realising the additional

Provident Fund contributions from the petitioner, for the

same to be remitted to the pension fund. It is the

petitioner's case that notwithstanding realising additional

Provident Fund contributions from both the petitioner and

other similarly placed persons in the employment of the

respondent no.5, since the Provident Fund authorities were

not disbursing higher pension by acting in terms of

paragraph   11   (3)   proviso       of   the   said   Scheme,   a

representation was made by the respondent no. 5 to the

Regional Provident Fund Commissioner, requesting them to

look into the matter and to release higher pension to the

employees of respondent no.5              who had since     been

superannuated. By letter dated 26th April 2013, the

Provident Fund Commissioner rejected the claim for

disbursal of higher pension.

      Mr. Mitra submits that challenging the aforesaid

rejection, a writ application was filed before this Court by

West Bengal State Co-operative Agriculture and Rural

Development Bank Employees' Association which was

registered as W.P. 2381 (W) of 2014. By an order dated 20th

March 2014, this Hon'ble Court, while setting aside the

rejection dated 26th April 2013, directed the Provident Fund

Commissioner to settle the pensionary benefits of the
                                   3




employees of the respondent no.5, subject to              such

employees fulfilling all other requirements.

      In the interregnum, however, the said Scheme was

amended and paragraph 11 (4) of the said Scheme was

inserted with effect from 1st September 2014, thereby

permitting the employees who had been contributing on the

salary exceeding Rs.6500/- per month, to exercise fresh

option jointly with the employer, for contributing on the

salary exceeding Rs.15000/- per month, subject to the

employees contributing @ 1.16 per cent on the salary

exceeding Rs.15000/- as an additional contribution from

and out of the contributions payable by the employees for

each month under the provisions of the Act or rules made

thereunder.

      Mr. Mitra, by drawing the attention of this Court to

the document dated 16th July 2015, which forms part of

the writ application submits that the petitioner jointly with

his employer being the respondent no.5 had exercised his

option in terms of paragraph 11(4) of the said Scheme and

the same was also acknowledged by the Provident Fund

Authorities.

      The petitioner says that an appeal was carried from

the order dated 20th March 2014. The order passed by the

learned Single Judge was set aside by the Hon'ble Division

Bench of this Court by an order dated 4th April 2016, inter

alia, by observing as follows:-

                     "In order to ascertain this, material to be
               produced by the employee and the employer
               cannot be decided in the lis initiated at the
               instance of the association, particularly when
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            conflicting documents coming forth before this
            Court and also in the light of not submitting
            proper format for claim of such benefit giving
            details as indicated in the requisite format
            under the statute and procedure.
                   In the light of above practical difficulty
            we are of the opinion there cannot be uniform
            direction to consider all the members of the
            association for higher pension benefit. Each
            case has to be decided depending upon
            establishment of contribution as indicated in
            the amended paragraph 11 of the Scheme.
                   .........................................................

We reserve liberty to be (Sic; read: the) members of the respondents/writ petitioners to approach the appellant Authority in terms of proper requisite application and also place on record requisite information as required in paragraph 11 of the amended Scheme and the same shall be considered by the Provident Fund Commissioner in accordance with the procedure contemplated after giving opportunity of hearing to the employees and the employer.

Mr. Mitra submits that since the petitioner had

already exercised his option in terms of paragraph 11(4) of

the said scheme consequent upon paragraph 11 (4) being

inserted by notification dated 22nd August 2014, the

petitioner did not make further application in terms of the

liberty reserved by the Hon'ble Division Bench of this

Court. He says that the aforesaid option exercised by the

petitioner under paragraph 11(4) of the said Scheme was

duly acted upon by the respondent no.4. It is submitted

that the respondent no.4, while acting on the basis of the

option exercised by the petitioner in terms of paragraph 11

(4) of the said Scheme, had called upon the petitioner to

deposit a sum of Rs.2,31,251/- as differential contribution

payable by the petitioner for the period from November

1995 to March 2021 with applicable rate of interest for the

respondent no.4 to process the petitioner's entitlement for

higher pension. It is submitted that the petitioner, while acting

in terms of the aforesaid letter, had duly deposited a sum of

Rs.2,31,251/- and such sum had been duly remitted to

the Provident Authorities. The petitioner states that the

respondents, while acting on the basis of the deposits made

by the petitioner, had also issued a Pension Payment Order

on 3rd November 2021 and had thereby determined

Rs.10894/- as monthly pension payable to the petitioner.

The petitioner says that unfortunately since June

2022, the respondents all on a sudden stopped disbursing

pension in favour of the petitioner without any rhyme or

reason. This prompted the petitioner to make

representation. Despite such representation, no steps have

been taken by the respondents and hence, the present writ

application has been filed.

In course of hearing, it is submitted on behalf of the

petitioner that for the first time, the learned advocate

representing the Provident Authorities had disclosed that a

revised Pension Payment Order had been issued, thereby

revising the petitioner's pension from Rs. 10894/- to Rs.

2588/- per month.

The aforesaid revision is illegal. No reasons for such

revision has also been disclosed in the affidavit filed by the

Provident fund authorities. This Hon'ble may be pleased to

direct the Provident Fund authorities to release and

disburse higher pension in favour of the petitioner by

revising the aforesaid Pension Payment Order dated 3rd

November 2022

Per contra, Mr. Gupta, learned advocate appearing

for the Provident Fund authorities submits that the

petitioner did not exercise his option in terms of paragraph

11 (3) of the said Scheme. By referring to the notification

dated 26th April 2021, which is at page 25 of the writ

application, it is submitted that the said notification is

contrary to paragraph 11(3) of the said Scheme and no

option on the basis thereof could be exercised by the

petitioner. By referring to the order passed by the Hon'ble

Division Bench of this Court dated 4th April 2016, it is

submitted that despite the Division Bench reserving liberty

to the employees to approach the Provident Authorities

with requisite application, the petitioner had not

approached them and as such is not entitled to get higher

pension. By referring to sub paragraph (h) of paragraph 5

of the affidavit filed by the Provident Fund authorities, he

submits that since the exercise of option by the petitioner

under paragraph 11 (4) of the said Scheme was beyond the

time specified in the said Scheme, the same was not

accepted by the Provident Fund authorities. It is still

further submitted, that the pension payment order

directing disbursal of higher pension was withdrawn, since

the matter was pending before the Hon'ble Supreme Court.

He says the issue has now been resolved and in this

context relies on the Judgment delivered by the Hon'ble

Supreme Court in the case of The Employees Provident

Fund Organization & Anr. ETC versus Sunil Kumar B.

& Ors. ETC1.

Mr. Ray learned advocate appearing for respondent

nos. 5, 8 and 9 submits that the respondent no. 5 had

jointly, with the petitioner, exercised the option and had

duly forwarded the documents to the respondent no.4. In

this context, he places reliance on the letter dated 16th July

2015 addressed to the Provident Fund Commissioner. He

submits that all optional forms including that of the

petitioner were duly forwarded to the authorities, which

had also been acknowledged by them. The Provident Fund

authorities are bound to adhere to such communication

issued by the respondent no. 5.

I have heard the learned advocates appearing for the

respective parties and have considered the materials on

record. I find admittedly the writ petitioner was in

employment with the respondent no. 5 and the petitioner

was enjoying a pensionable service. I find from the affidavit

filed by the respondent no. 4 that the option form exercised

by the petitioner on 29th April 2011, has been annexed to

such affidavit. The said option was obviously exercised in

terms of paragraph 11 (3) proviso of the said Scheme.

Subsequently, however, the petitioner once again, after

omission of paragraph 11 (3) proviso of the said Scheme,

by the newly inserted paragraph 11(4), once again, jointly

along with respondent no. 5, had exercised option thereby

opting for higher pension.

2022 SCC Online SC 1521

The factum of receipt of the option form under

paragraph 11 (4) of the Scheme, by letter dated 16th July

2015 has not been denied by the respondent/Provident

Fund authorities in the affidavit in opposition. The

Provident Fund authorities, however, attempted to explain

such document, by inter alia contending that such option

was exercised beyond the stipulated period of 6 months

with effect from 1st September 2014 and as such, the same

cannot be considered, as an option within the meaning of

paragraph 11 (4) of the said Scheme. In the instant case,

however, it would appear that the respondent/Provident

Fund authorities had acted on the basis of the option

exercised by the petitioner, claiming higher pension in

terms of paragraph 11 (4) of the said Scheme and by

invoking the first proviso to paragraph 11 (4) of the said

Scheme, had called upon the petitioner to make payment of

the differential amount on account of contributions payable

by the petitioner @ 1.16 per cent on the salary exceeding

Rs.15000/- as an additional contribution from and out of

the contribution payable by the petitioner for each month

under the provisions of the said Scheme. The petitioner,

while acting on the basis of the directives issued by the

Provident Fund authorities, had also deposited a sum of

Rs. 2,31,251/-. Such fact would corroborate from an

undated letter at page 63 of the writ application.

Respondent no. 4 has further not denied receipt of

the said sum of Rs.2,31,251/-. On the contrary, it has been

their contention inasmuch as the petitioner had not

exercised the option within the time stipulated in

paragraph 11 (4) of the said Scheme, the option exercised

was deemed to be irregular and cannot be accepted. It

would also appear from the statements made in paragraph

9 of the affidavit filed by the respondent no. 4 that higher

pension payable to the petitioner was stopped since the

matter was pending before the Hon'ble Supreme Court.

From the document dated 16th July 2015, it would

appear that the petitioner had exercised his option and

such option form had been verified by the employer and

had been forwarded to the Employees' Provident Fund

Organization who had duly acknowledged the same. Such

fact would corroborate from the acknowledgement seal

appearing on the said letter, itself.

I find that the factum of receipt of the said letter

dated 16th July 2015 had not been denied, however, the

option exercised by the petitioner has been ignored, inter

alia, by claiming that the same had been filed beyond the

stipulated period. I find, that the judgment delivered in the

case of The Employees Provident Fund Organization &

Anr. ETC versus Sunil Kumar B. & Ors. ETC2., the

Hon'ble Supreme Court has extended the time to exercise

option, under paragraph 11(4) of the said Scheme by a

further period of 4 months. I find that the petitioner, along

with his employer, the respondent no. 5, had jointly

exercised the option under paragraph 11(4) of the said

Scheme. In such circumstances, as to whether the

petitioner had exercised such option, within the time

stipulated in paragraph 11(4) of the said Scheme loses

2022 SCC Online SC 1521

much of its significance. The respondent no.4 having called

upon the petitioner to deposit the additional contribution in

terms of paragraph 11(4) cannot turn around and claim

that petitioner having not approached them with requisite

application, in terms of the order passed by the Hon'ble

Division Bench is not entitled to claim higher pension. I

find that no proper explanation is forthcoming as to why

the petitioner's pension has been revised from Rs.10894/-

to Rs.2588/-. The issue before the Supreme Court having

been resolved, there cannot be any impediment in the

disbursing higher pension in favour of the petitioner.

Although the petitioner had asserted that the

petitioner had deposited contributions as was directed to

be paid by the Employees' Provident Fund Organization

and had deposited a sum of Rs.2,31,251/-, yet without

going into such controversy, it would be prudent to direct

the respondent no. 4 to ascertain whether the petitioner

had contributed @ 1.16 per cent on the salary exceeding

Rs.15000/- as an additional contribution from and out of

the contributions payable by the petitioner for each month

in terms of paragraph 11 (4) of the said Scheme and in the

event of shortfall, to realise the same from the petitioner

along with interest.

I find that the Hon'ble Supreme Court despite

declaring the requirement of members to contribute @ 1.16

per cent on the salary to the extent of salary exceeding

Rs.15000/- as an additional contribution under the said

Scheme to be ultra vires, has suspended the operation of

such order for a period of 6 months, so as to enable the

authorities to make adjustments in the Scheme so that

additional contribution can be generated. As such as and

when adjustments are made, it only natural that the

petitioner would also get benefit thereof.

In the light of the aforesaid, the respondent no. 4 is

directed to re-compute the pensionary benefits payable to

the petitioner, by treating the option exercised by the

petitioner under paragraph 11 (4) of the said Scheme as

valid and release appropriate monthly pension in favour of

the petitioner at higher rate along with arrears, as may be

found due by issuing revised Pension Payment Order.

The entire exercise must be completed within a

period of 2 (two) months from date.

With the above directions and observations, the writ

petition being WPA 21070 of 2022 is allowed.

There shall be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties on priority basis upon

completion of requisite formalities.

(Raja Basu Chowdhury, J.)